KEEP PLUS CO LTD v. LAU KAU AND ANOTHER

DCCJ 4487/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4487 OF 2007

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DECISION

1.  Keep Plus, the Plaintiff, claims possession of the plot of land in question against Lau, the 1^st Defendant, and all other occupiers, collectively the 2^nd Defendant, who are allegedly trespassers.  Lau claims adverse possession of the land since 1958.

2.  After pleadings have been filed, Keep Plus requested for further and better particulars of Lau’s Defence and Counterclaim.  By virtue of a consent order made on 16 February 2009, Lau consented to filing and serving answers to the request.  Lau did so but Keep Plus took the view that some requests have not been answered adequately or at all.

3.  By summons, Keep Plus applied for an order that unless Lau provides the outstanding answers as requested, Lau’s pleading should be dismissed with costs and Keep Plus should be at liberty to enter final judgment for possession and mesne profits to be assessed.

4.  The summons was heard but dismissed by the Master on 15 May 2009 with no order as to costs.  Keep Plus now appeals.  Effectively I am rehearing Keep Plus’s summons.

5.  At the end of hearing, I gave my decision and order.  I now give my reasons.

The requests and answers in question

6.  The requests were contained in the letter from Keep Plus’ solicitors dated 16 January 2009.  They concern paragraph 2 of Lau’s Defence and Counterclaim, in particular:

(1)  under paragraph 2(a), the allegation that:

“in 1958 the 1^st Defendant entered a piece of property which is subsequently known as Lot No. 491 in Demarcation District No. 106 (91E Ng Ka Tsuen) (“ the Property”)”;

(2)  under subparagraph (a) of the Particulars of Possession by the 1^st Defendant and Dispossession of the Plaintiff and the Plaintiff’s Predecessors-in-title, the allegation:

“erection of a house and structure on the Property.”

7.  Of the answers filed, Keep Plus took issue as to the following ones:

Para.1.1

Request

Identify the location of the Property on a plan and state whether the Property was known as Lot No. 491 in Demarcation District No. 106 at the time of the 1^st Defendant allegedly entered thereon.

Answer

The 1^st Defendant is in the course of obtaining a land surveyor’s report and shall produce the same when it is ready.

Para.1.3

Request

State whether Lot No. 491 in Demarcation District No. 106 is the same as “91E Ng Ka Tsuen”; and if not, differentiate them by proper description and show the respective locations on a proper plan.

Answer

To the best knowledge of the 1^st Defendant, Lot No. 491 in Demarcation District No. 106 (“the Lot”) is not the same as 91E Ng Ka Tsuen.  91E Ng Ka Tsuen is within the Lot.  The 1^st Defendant is in the course of obtaining a land surveyor’s report and shall produce the same when it is ready.

Para.1.4

Request

Identify the location and footprint of the alleged house and structure on the Property by means of a proper plan and state:-

1.4.1               whether it was erected by the 1^st Defendant;

1.4.2               when it was erected;

1.4.3               its built-over area in terms of square footage;

1.4.4      whether it was of a temporary or permanent nature and describe the materials used in its construction;

1.4.5      whether it was a single storey or multi-storey structure; and in the latter case, state the number of storeys;

1.4.6               the total accommodation area provided by it; and

1.4.7      whether it was enlarged or rebuilt from time to time; and if so, in respect of each occasion of enlargement or rebuilding, give the same particulars as requested above.

Answer

The 1^st Defendant is in the course of obtaining a land surveyor’s report and shall produce the same when it is ready.

……

1.4.7     The house consists of one taller structure (approximately 1,200 square feet) and one shorter structure (approximately 800 square feet).  The shorter structure has been altered in the early 90’s.  Originally, it was used to raise livestock, but was later altered to be the living quarters of the 1^st Defendant’s family.

Para.2

Request

State in respect of each of the family members alleged in subparagraph (a):-

……

2.2          his/her age at the date hereof.

Answer

 The respective ages of the family members of the 1^st Defendant are as follows:

[Lau stated the respective ages of his family members but not himself.]

Discussion

Para.1.1

8.  The answer given was effectively that both the identification of the location of the Property on a plan and the confirmation as to whether the Property was known as Lot No. 491 in Demarcation District No. 106 at the time when Lau allegedly entered the Property (in 1958) were pending the surveyor’s report.

9.  Further actual answer to the request was therefore expected.  Keep Plus’s complaint is that one month had elapsed since the answers were filed but the further answer to both parts of this request was not forthcoming.

10.  Miss Tam for Lau submitted that the obtaining of the surveyor’s report took time.  This might be true but it was really Lau’s concern.  I note that while it was represented in the answers filed on 28 March that Lau was in the course of obtaining the surveyor’s report, the report dated 29 May records that the on-site inspection and survey was not conducted until 9 May.

Para.1.3

11.  Lau has answered the first part of the request.  In view of his answer, he has to proceed to answer the second part by describing and showing in a proper plan the location of No. 91E Ng Ka Tsuen within Lot No.491.  As to this, Keep Plus made the same complaint mentioned above.

Para.1.4

12.  Keep Plus made the same complaint mentioned above.

13.  As to subpara.1.4.7, Lau’s answer was that there has been alteration of the use of the shorter structure from keeping livestock to become living quarters in early 1990’s.  But Lau did not say whether the alteration entailed enlargement or rebuilding of the structure.

Para.2.2

14.  Miss Tam suggested that Lau himself could not be included in this request as a matter of plain construction of the request.  I do not agree.  The request concerns paragraph 2(a) of Lau’s pleading and Lau indeed included himself as a member of the family.  He just left himself out in his answer to this request regarding the age of the respective members of his family.

After the hearing before the Master

15.  Keep Plus took out this appeal.  Meanwhile, its solicitors proposed that Lau consented to file and serve further answers in respect of the above outstanding requests together with the surveyor’s report in order to dispose of the appeal.  It does not seem Lau has agreed to this proposal.

16.  On 3 June 2009, the solicitors for Lau by letter informed Keep Plus’ solicitors of the age of Lau, i.e., 91, apparently to answer para.2.2 of the request.  Keep Plus accepts the answer in substance but not in form.  In my view, Keep Plus is entitled to adopt such view: see O.18, r.12(7) of the Rules of the District Court; Hong Kong Civil Procedure 2009, Vol.1 at 18/12/66.

17.  On 3 June 2009, Lau’s solicitors also supplied to Keep Plus a surveyor’s report.  The report tells the following:

(1)  The surveyor was instructed to define the boundary of the Lot No. 491 in DD 106 in order to confirm the area being occupied by Lau and his family.

(2)  The Lot and the area therein that is being occupied by Lau and his family is identified in the survey record plan annexed to the report.  The area being occupied is 931.1 square metres.

18.  Miss Tam submitted that the production of this report has rendered the appeal meaningless.  I do not agree.  This is a request for further and better particulars of pleading rather than discovery of document.  If Miss Tam were right, that would mean a party might answer a request by producing a document and expecting the party making the request to find the answer from the document produced.  What Lau is supposed to do is to answer the request in accordance with the information obtained from the report or with actual reference to the report.  The production of the report is not per se the answer and is not what Keep Plus requested in the first place.

19.  Yet even with the report now, it seems that this would not enable Lau to answer the outstanding requests.  As mentioned above, the report only defines the Lot and the area within the Lot that is being occupied by Lau and his family as at the date of the on-site inspection, i.e., 9 May 2009.  It cast no light on “the Property” that Lau defines in paragraph 2(a) of his pleading, namely, the piece of land that he entered in 1958, and whether the Property was known as Lot No.491 in DD.106 in 1958 as asked in para.1.1 of the request.  The plan annexed to the report made no reference to “91E Ng Ka Tsuen” and thus failing to differentiate it from Lot No.491 as asked in para.1.3 of the request.  It also does not serve to identify the location and footprint of the house and structure on the Property (in 1958) as asked in para.1.4 of the request.

20.  I agree that compliance with the consent order was still partly outstanding as at the date of the hearing of the Keep Plus’ summons before Master.  While this might not take the form of an unless order, an order for the outstanding answers to be filed and served ought to have been made.  In court, Mr Tang for Keep Plus confirmed that he no longer insist on a formal answer to para.2.2 as to Lau’s age to be filed.

21.  I therefore allowed the appeal.  I saw no reason why costs should not follow the event in the circumstances of this case.

Name of Lau

22.  I pointed out and Mr Tang agreed that the name of Lau appearing on the court documents should be amended for clarity.

Order

23.  The above explained my following order made at the end of the hearing:

(1)  Leave to Keep Plus to amend the name of Lau appearing on the writ of summons to “LAU KAU (劉球) also known as LAU WOON KAU” and to file the amended writ of summons on or before 24 June 2009; service of the amended writ of summons and the consequential amendment of the subsequent pleadings already filed be dispensed with;

(2)  Appeal allowed and order of the Master on 15 May 2009 be set aside;

(3)  Lau shall file and serve his further and better particulars as per paras.1.1, 1.3, 1.4 and 1.4.7 of Keep Plus’s request for further and better particulars of the Defence and Counterclaim pursuant to the consent order dated 16 February 2009 on or before 17 July 2009;

(4)  Costs of and occasioned by this appeal and the application under Keep Plus’ summons dated 28 April 2009 (including any costs reserved) be to Keep Plus in any event.  Costs shall be taxed if not agreed.

(5)  Lau’s own costs be subject to legal aid taxation.