SO LAI HA YVONNE v. HO TIM TAI AND ANOTHER

DCCJ 5169/2019

[2024] HKDC 1643

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5169 OF 2019

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DECISION

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I. INTRODUCTION

1.  Before me is a consent summons signed by the plaintiff’s solicitors and the 2^nd defendant’s solicitors (who, however, have filed the acknowledgment of service stating that he does not intend to contest the plaintiff’s claim)  filed on 25 March 2024 for various declaratory and consequential reliefs, namely:-

“1. A declaration that the Plaintiff has acquired a right of way and easement over those parts of the 1^st floor of the staircase (“PA2”)  connecting those parts exclusively used and possessed by the Plaintiff on the 2^nd floor level with the main roof on a piece of land identified and/or registered at the Land Registry as Lot No.426 in Demarcation District No.281, Shatin, New Territories, Hong Kong (“PA1”)  to the main entrance of House No.35A, Sha Tin Wai, New Territories, Hong Kong (“House No.35A”), with PA1 and PA2 more particularly identified in the 2^nd Floor Plan and Roof Plan of House No.35A annexed hereto and shaded in “blue” and “green” respectively, for herself and/or her successors-in-title, agents and/or licensees at all times and for all purpose

2. A declaration that the Plaintiff is the owner of the land known as “All that one equal undivided 3^rd part or share of and in Lot No.427 in Demarcation District No.281 (self-contained Unit on the 2^nd Floor of the Building erected thereon and the Main Roof thereover)” and covering thereover PA1 and PA2 which is in the Plaintiff’s sole and exclusive possession;

3. A declaration that the Plaintiff is entitled as the sole lawful owner thereof to deal with or otherwise dispose of the “All that one equal undivided 3^rd part or share of and in Lot No.427 in Demarcation District No.281 (self-contained Unit on the 2^nd Floor of the Building erected thereon and the Main Roof thereover)” and there inclusive of thereover PA1 and PA2 which is in the Plaintiff’s sole and exclusive possession;

4. Alteration of the Land Registry to reflect the addition of the relevant part of the land known as “thereover PA1 and PA2 which is in the Plaintiff’s sole and exclusive possession” from the paper title of the Plaintiff; and

5. There be no order as to costs between the Plaintiff and the 2^nd Defendant including this application.”

2.  The order sought in the consent summons largely mirrors the relief of the re-amended writ of summons against both the 1^st and 2^nd defendants.

II.  BRIEF PROCEDURAL BACKGROUND

3.  As said, the 2^nd defendant has defaulted in defence.  The 1^st defendant, however, contests the plaintiff’s claim, and the trial between them shall commence on 30 October 2024 with 3 days reserved.  In very brief terms relevant to the present purposes, the dispute between the plaintiff and the 1^st defendant is (1)  whether the plaintiff has had adverse possession over PA1; and (2)  whether the plaintiff has acquired a right of way or easement of PA2, which consists of the staircase running from the ground floor up to the 2^nd floor.

4.  After the plaintiff and the 2^nd defendant filed the summons on 25 March 2024, Deputy District Judge Frances Lok directed the parties to fix a date for substantive hearing over the parties’ entitlement to the order sought in the consent summons.

5.  In August 2024, the parties fixed the consent summons to be heard today.

6.  Nothing eventful happened until 17 September 2024 when I granted leave to the plaintiff to file a re-re-amended writ of summons, and on 23 September 2024, the plaintiff issued the re-re-amended writ of summons accordingly.  Relevant for the present purposes is the deletion of the relief in the prayer of the re-amended writ of summons in terms of paragraphs 2 – 4 of the consent summons.  The deletion (albeit late)  must be right given the well-established legal principles (for example, in Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC 295)  that a squatter only acquires a possessory title but does not become in any way a paper title owner.

7.  Despite the re-re-amended writ of summons, no attempt has been made to amend the consent summons correspondingly.

8.  On 27 September 2024, I gave directions to raise a few queries, including the parties’ entitlement to paragraphs 2 – 4 of the consent summons. On 27 September 2024, the parties applied by letter to adjourn the consent summons to be heard for the first hour on the first day of the said trial between the plaintiff and the 1^st defendant to commence on 30 October 2024, saying that the parties would need time to consider the consent summons.

9.  I refused the application for adjournment, thus today’s hearing, where the plaintiff still took the primary position that the consent summons should be adjourned.

III.  PARTIES IN CONSENT SUMMONS HAVE TO EXPLAIN WHY DECLARATORY RELIEF IS NECESSARY

10.  It is trite that a Court does not make declaratory relief even if the parties consent, unless the Court is satisfied that the declaratory relief is necessary to do justice: see Hong Kong Civil Procedure 2024 Vol 1 §19/7/14.

11.  Therefore, where the parties enter into a consent summons for declaratory relief, the Court expects explanation why the declaratory relief is necessary to do justice.  Without any such explanation, the Court should follow its practice not to make any declaratory order sought by the consent summons.

IV.  ANALYSIS

12.  First, paragraphs 2 – 4 of the consent summons cannot be made, given the deletion of the corresponding relief in the re-re-amended writ of summons.

13.  Second, in respect of the phrase “those parts exclusively used and possessed by the Plaintiff on the 2^nd floor level… (“PA1”)” in paragraph 1 of the consent summons, it is a matter for the trial between the plaintiff and the 1^st defendant.  This phrase should not be in the consent summons between the plaintiff and the 2^nd defendant.

14.  Third, in respect of the substance of paragraph 1 of the consent summons, namely, the declaratory relief of a right of way or easement over the 1^st floor of PA2, it must be noted that the whole PA2 consists of the parts of the 2^nd floor, of the 1^st floor and of the ground floor, because PA2 is a whole staircase connecting PA1 on the rooftop immediately above the 2^nd floor to the entrance on the ground floor.  Therefore, it is clear that the trial judge’s findings of the use of the parts of the 2^nd floor and of the ground floor of PA2 would have impact on the findings of the parts of the 1^st floor of PA2.  For example, if the trial judge is not satisfied that the plaintiff has acquired a right of way or easement over the parts of the 2^nd floor and of the ground floor of PA2, it may be unlikely that the trial judge would be satisfied that the plaintiff has acquired such a right over those parts of the 1^st floor of PA2 (the subject matter of paragraph 1 of the consent summons).  Conversely, a declaratory relief of such a right over the parts of the 1^st floor of PA2 may put the trial judge in a difficult position that with the right over the parts of the 1^st floor of PA2 as a given in the same action, he may encounter logical difficulty in finding against the plaintiff in respect of the parts of the 2^nd floor and of the ground floor of PA2.

15.  As an aside, viewed this way as in the preceding paragraph, the 1^st defendant is obviously an interested party in the consent summons. 

16.  Lastly, any suggestion that the consent summons could be salvaged by amendment to it cannot be maintained because any amendment that could salvage the consent summons would simply make the consent summons materially different.  In such circumstances, the parties should file a new consent summons.

V.  CONCLUSION

17.  For whatever further negotiation between the plaintiff and the 2^nd defendant may have been engaged in and for whatever further considerations the plaintiff and the 2^nd defendant may have in respect of the consent summons, by my analysis above, the consent summons itself will not be allowed.  There is thus no point for the Court to hold over the consent summons and/or adjourn the matter to the first day of the trial between the plaintiff and the 1^st defendant, which would only cause unnecessary disturbance to the trial.

18.  Therefore, I dismiss the consent summons with no order as to costs.