TEAM GLORY DEVELOPMENT LTD v. CHUNG YEUNG HUNG

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

-----------------

-----------------

JUDGMENT

-----------------

The appeal

1. The Defendant appeals against the decision of the Registrar who refused to allow the amendment to the Defence and Counterclaim.

Original defence

2. The Plaintiff claims that the Defendant is a trespasser to his land. In his original defence, the Defendant admits that he is occupying the Plaintiff's land. He said that the Plaintiff's action is barred by the Limitation Ordinance. He said he started to live on the land since 1972. Since 1948, one Mr Tse Fun had been in possession of the land and in 1956 Mr Tse transferred the land to the Defendant's brother who had been in continuous occupation of the land until he died in 1977. Mr Man Hung Chung became the predecessor-in-title of the land. He knew of the occupation by the Defendant and his brother and he had not commenced proceedings against the Defendant. The Plaintiff's claim is barred by laches. The Plaintiff was also aware of possession of the land by the Defendant when he purchased the land from Mr Man. The Defendant further said that he had expended money on the land.

Proposed amendment

3. In the proposed amendment, the Defendant firstly denies that he is occupying the Plaintiff's land. Secondly he still maintains the defence of limitation of action. The Defendant says that part of the land was occupied by one Mr Wong since 1951. In 1959, Mr Wong transferred the interest in the land to the Defendant's elder brother, the father and the Defendant. The Defendant further says that another part of the land was occupied by one Mr Tse since 1951. In 1960 Mr Tse transferred the interest to Mr So who later transferred the land to the Defendant's brother, his father and the Defendant for valuable consideration. The Defendant says that he started living on the land since 1959/1960. He says that the squatters, namely, Mr Tse, Mr Wong, Mr So, the Defendant's brother, his father and the Defendant have together in continuous occupation of the land for more than 45 years.

4. The Defendant further gives particulars on the knowledge of Mr Man to the occupation by the Defendant. He also gives particulars of the knowledge of the Plaintiff to the occupation by the Defendant. A new defence of acquiescence is now raised and particulars on the expenditure by the Defendant on the land are now pleaded.

Objections

5. The Plaintiff opposes the application. It is said that the application is made late. No doubt the amendment comes at a late stage of the action but the application is still an application to amend the pleadings before trial.

6. Mr Wong submits that some of the amendments are in effect a withdrawal of admissions contained in the Defence. No doubt the denial that the Defendant is occupying the Plaintiff's land is a withdrawal of an admission, however, the Defendant says that he is not sure of the boundary of the Plaintiff's land. In any event, as I see it, the Plaintiff is not prejudiced by this withdrawal of admission. It is apparent that aerial photographs are available to show the boundary of the land.

7. I agree that there is a change in the year when the Defendant said he started to occupy the land. The change is from 1972 to 1959/1960. However, in the Statement of Claim it has not been pleaded when the Defendant began his occupation on the land. For the purpose of an application to amend, I just cannot say that the matters are so clear that the amendment is not bona fide made.

8. What is contained in the amendment provides details of the defence. The joint occupation of the trespassers was already raised in the original defence. The period of time has been lengthened from 20 years to over 40 years, but the gist of the defence was already there. No doubt Mr Wong and Mr So are only mentioned in the proposed amendment, but the identities of the trespassers of the land were already a problem for the Plaintiff even under the original Defence.

9. Mr Wong submitted that the Defendant's witness Mr Tse merely mentioned the sale of the land to the Defendant's brother, and there was no reference to the sale to the Defendant; in any event, someone cannot be both the owner and squatter of the land. In my view, this is correct but if the Defendant cannot establish that the land was transferred to him, then he should be allowed to pursue the defence of being a squatter.

10. The matters regarding the knowledge of Mr Man would have to be dealt with by him and he is already a witness in this case. The defence of acquiescence is raised on substantially the same matters that had been previously pleaded. The new Counterclaim in effect proceeds on the same basis that the Plaintiff's action is barred by the Limitation Ordinance. There really is nothing new in the Counterclaim that the Plaintiff cannot deal with.

11. I agree that problems may arise on the recovery of cost by the Plaintiff because the Defendant is now legally aided, but more importantly all the issues in this case should be before the trial judge.

Conclusion

12. Accordingly I will allow the appeal and grant leave to the Defendant to amend the Defence and Counterclaim.